— page 80 —THE DECISION OF COMMISSIONER LORING.
The issue between the parties arises under the U. S. Statute of 1850, and for the respondent it is urged that the statute is unconstitutional. Whenever this objection is made it becomes necessary to recur to the purpose of the statute. It purports to carry into execution the provision of the constitution which provides for the extradition of persons held to service or labor in one State and escaping to another. It is applicable, and it is applied alike to bond and free—to the apprentice and the slave, and in reference to both, its purpose, provisions and processes are the same.
The arrest of the fugitive is a ministerial, and not a judicial act, and the nature of the act is not altered by the means employed for its accomplishment. When an officer arrests a fugitive from justice or a party accused, the officer must determine the identity, and use his discretion and information for the purpose. When an arrest is made under this statute, the means of determining the identity are prescribed by the statute; but when the means are used and the act done, it is still a ministerial act. The statute only Substitutes the means it provides for the discretion of an arresting officer, and thus gives to the fugitive from service a much better protection than a fugitive from justice can claim under any law.
If extradition is the only purpose of the statute and the determination of the identity is the only purpose of these proceedings under it, it seems to me that the objection of unconstitutionality to the statute, because it does not furnish a jury trial to the fugitive, is answered ; there is no provision in the Constitution requiring the identity of the person to be arrested should be determined by a jury. It has never been claimed for apprentices nor fugitives from justice, and if it does not belong to them it does not belong to the respondent.
And if extradition is a ministerial act, to substitute in its performance, for the discretion of an arresting officer, the discretion of a Commissioner instructed by testimony under oath, seems scarcely to reach to a grant of judicial power, within the meaning of the U. S. Constitution. And.it is certain that if the power given to and used by the Commissioner of U. S. Courts under the statute is unconstitutional—then so was the power given to, and used by magistrates of counties, cities, and towns, and used by the act of 1793. These all were Commissioners of the United States—the powers they used under the statute were not derived from the laws of their respective States, but from the statute of the United States. They were commissioned by that and that alone. They were commissioned by the class instead of individually and by name, and in this respect the only difference that I can see between the acts of 1793 and 1850 is, that the latter reduced the number of appointees, and confined the appointment to those who by their professional standing should be competent to the performance of their duties, and who bring to them the certificates of the highest judicial tribunals of the land.
It is said the statute is unconstitutional, because it gives to the record of the Court of Virginia an effect beyond its constitutional effect. The first section of the fourth article of the Constitution is directory only on the State power and as to the State Courts, and does not seek to limit the con-
— page 81 —trol of Congress over the tribunals of the United States or the proceedings therein. Then in that article the term "records and judicial proceedings" refers to such inter partes and of necessity can have no application to proceedings avowedly ex parte. Then if the first section includes this record, it expressly declares as to "records and judicial proceedings," that Congress shall prescribe "the effect thereof," and this express power would seem to be precisely the power that Congress has used in the Statute of 1850.
Other constitutional objections have been urged here, which have been adjudged and readjudged by the Courts of the United States, and of many of the States, and the decisions of these tribunals absolve me from considering the same questions further than to apply to them the determination of the Supreme Court of this State in Sim's case, 7 Cushing, 309, that they "are settled by a course of legal decisions which we are bound to respect, and which we regard as binding and conclusive on the Court."
But a special objection has been raised to the record that it describes the escape as from the State of Virginia and omits to describe it as into another State in the words and substance of the Constitution. But in this the record follows the 10th section of the Statute of 1850, and the context of the section confines its action to cases of escape from one State, &c., into another, and is therefore in practical action and extent strictly conformable to the Constitution.
This Statute has been decided to be constitutional by the unanimous opinion of the Judges of the Supreme Court of Massachusetts on the fullest argument and the maturest deliberation, and to be the law of Massachusetts as well as, and because it is, a constitutional law of the United States; and the wise words of our revered Chief Justice in that case, 7 Cushing, 318, may well be repeated now, and remembered always. The Chief Justice says:—
"Slavery was not created, established, or perpetuated by the Constitution ; it existed before; it would have existed if the Constitution had not been made. The framers of the Constitution could not abrogate Slavery, or the rights claimed under it. They took it as they found it, and regulated it to a limited extent. The Constitution, therefore, is not responsible for the origin or continuance of Slavery—the provision it contains was the best adjustment which could be made of conflicting rights and claims, and was absolutely necessary to effect what may now be considered as the general pacification, by which harmony and peace should take the place of violence and war. These were the circumstances, and this the spirit in which the constitution was made—the regulation of slavery so far as to prohibit States by law from harboring fugitive slaves was an essential element in its formation, and the Union intended to be established by it was essentially necessary to the peace, happiness, and highest prosperity of all the States. In this spirit and with those views steadily in prospect, it seems to be the duty of all judges and magistrates to expound and apply these provisions in the constitution and laws of the United States; and in this spirit it behooves all persons, bound to obey the laws of the United States, to consider and regard them."
It is said that the statute, if constitutional, is wicked and cruel. The like charges were brought against the act of 1793; and C. J. Parker, of Massa-
— page 82 —chusetts, made the answer which C. J. Shaw cites and approves, viz:—"Whether the statute is a harsh one or not, it is not for us to determine."
It is said that the statute is so cruel and wicked that it should not be executed by good men. Then into what hands shall its administration fall, and in its administration what is to be the protection of the unfortunate men who are brought within its operation? Will those who call the statute merciless commit it to a merciless judge?
If the statute involves that right, which for us makes life sweet, and the want of which makes life a misfortune, shall its administration be confined to those who are reckless of that right in others, or ignorant or careless of the means given for its legal defence, or dishonest in their use? If any men wish this, they are more cruel and wicked than the statute, for they would strip from the fugitive the best security and every alleviation the statute leaves him.
I think the statute is constitutional, as it remains for me now to apply it to the facts of the case.
The facts to be proved by the claimant arc three:—
1. That Anthony Burns owed him service in Virginia.
2. That Anthony Burns escaped from that service.
These facts he has proved by the record which the statute, sec. 10, declares "shall be held and taken to be full and conclusive evidence of the fact of escape, and that the service or labor of the person escaping is due to the party in such record mentioned."
Thus these two facts are removed entirely and absolutely from my jurisdiction, and I am entirely and absolutely precluded from applying evidence to them. If therefore there is in the case evidence capable of such application, I cannot make it.
The 3d fact is the identity of the party before me with the Anthony Burns mentioned in the record.
This identity is the only question I have a right to consider. To this, and to this alone, I am to apply the evidence; and the question whether the respondent was in Virginia or Massachusetts at a certain time, is material only as it is evidence on the point of identity. So the parties have used it, and the testimony of the complainant being that the Anthony Burns of the record was in Virginia on the 19th of March last, the evidence of the respondent has been offered to show that he was in Massachusetts on or about the first of March last, and thereafter till now.
The testimony of the claimant is from a single witness, and he standing in circumstances which would necessarily bias the fairest mind—but other imputation than this has not been offered against him, and from any thing that has appeared before me, cannot be. His means of knowledge are personal, direct, and qualify him to testify confidently, and he has done so.
The testimony on the part of the respondent is from many witnesses whose integrity is admitted, and to whom no imputation of bias can be attached by the evidence in the case, and whose means of knowledge are personal and direct, but in my opinion less full and complete than that of Mr. Brent.
Then between the testimony of the claimant and respondent there is a conflict, complete and irreconcilable. The question of identity on such a
— page 83 —conflict of testimony is not unprecedented nor uncommon in judicial proceedings, and the trial of Dr. Webster furnished a memorable instance of it.
The question now is, whether there is other evidence in this case which will determine this conflict. In every case of disputed identity there is one person always whose knowledge is perfect and positive, and whose evidence is not within the reach of error, and that is the person whose identity is questioned, and such evidence this case affords. The evidence is of the conversation which took place between Burns and the claimant on the night of the arrest.
When the complainant entered the room where Burns was, Burns saluted him, and by his Christian name—"How do you do, Master Charles ?" He saluted Mr. Brent also, and by his Christian name—"How do you do, Master William?" (To the appellation "Master," I give no weight.)
Col. Suttle said, "How came you here?" Burns said an accident had happened to him—that he was working down at Roberts's, on board a vessel—got tired and went to sleep, and was carried off in the vessel.
Mr. S. Anthony, did I ever whip you?
B. No sir.
Mr. S. Did I ever hire you out any where where you did not wish to go?
B. No sir.
Mr. S. Have you ever asked me for money that I did not give it to you ?
B. No sir.
Mr. S. When you were sick did I not prepare you a bed in my own house, and put you upon it, and nurse you?
B. Yes sir.
Something was said about going back. He was asked if he was willing to go back, and he said—Yes, he was.
This was the testimony of Mr. Brent. That a conversation took place was confirmed by the testimony of Caleb Page, who was present, and added the remark that Burns said he did not come in Capt. Snow's vessel. The cross-examination of Brent showed that Col. Suttle said—"I make you no promises, and I make you no threats."
To me this evidence, when applied to the question of indentity [sic], confirms and establishes the testimony of Mr. Brent in its conflict with that offered on the part of the respondent, and then on the whole testimony my mind is satisfied beyond a reasonable doubt of the identity of the respondent with the Anthony Burns named in the record.
It was objected that this conversation was in the nature of admissions, and that too of a man stupefied by circumstances and fear, and these considerations would have weight had the admissions been used to establish the truth of the matters to which they referred, i. e. the usage—the giving of money—nursing, &c.; but they were used for no such purpose, but only us evidence in reference to identity. Had they been procured by hope or fear, they would have been inadmissible; but of that I considered there was no evidence.
On the law and facts of the case, I consider the claimant entitled to the certificate from me which he claims.
— page 84 —As soon as the decision was rendered, the court room was cleared of all the spectators, to allow the necessary preparations to be made for the sending back of the fugitive.
Court Square was also cleared of the crowds which thronged it.
Every window overlooking the square was filled with at least a dozen heads of persons anxious to witness the poor fugitive when he should be brought out. Among the spectators were several ladies.
At ten o'clock a detachment of the Dragoons passed up Court street, and were received with groans and hisses, and cries of "shame, shame," &c.
The business in the different courts was suspended while the preparations were going on to send the man back.
R. H. Dana, the senior counsel for the defence, passed out of the square about 11 o'clock, and as soon as the crowd saw him he was greeted with twelve hearty cheers.